The acquittal of eight defendants accused of conspiracy to cause criminal damage valued at £187,000 at a building on the south coast of England last year has led to much criticism of His Honour George Bathurst Norman, who presided over their trial this summer. But those who seem to think that the judge will be disciplined over his summing-up to the jury may well be disappointed.
Bathurst Norman retired from the circuit bench at the end of 2004 and so no longer enjoys the title “Judge” – although he remains “His Honour” for life. Some former circuit judges are authorised to sit on a part-time basis after they retire and are known as deputy circuit judges. It was in that capacity that Bathurst Norman presided over the case of R v Saibene and others, heard at Lewes Crown Court sitting at Hove in Sussex. It is not unusual for retired judges to deal with lengthy cases involving difficult questions of law.
The judge – as he was for the purpose of this case – correctly directed the jury that it is an offence in English law to damage or destroy someone else’s property if this is done intentionally and “without lawful excuse”. Those last three words may have proved crucial.
As the judge said, a person has a lawful excuse if he destroys or damages property in order to protect property belonging to another person. For the defence to apply, it is also necessary for the defendant to believe that the other person’s property was in immediate need of protection and that the means of protection that he used were reasonable in the circumstances. These tests are subjective: what matters is what the defendant honestly believed.
This defence, in section 5 of the Criminal Damage Act 1971, is presumably designed for the sort of case in which a fire-fighter smashes a window in order to put out a house-fire.
Here, the circumstances were very different. The defendants said they had damaged or destroyed equipment used to make weapons components. The equipment belonged to a company in Brighton referred to in court as MBM. This is EDO MBM, whose managing director, Paul Hills, was quoted last year as saying: “We make things that ensure the safe carriage and release of weapons from aircraft.” EDO MBM is part of the US company ITT, which makes armaments for F-16 fighter aircraft used by the Israelis.
The defendants argued that they were destroying MBM’s property in order to protect property in Gaza that might be otherwise destroyed by the Israeli defence forces. And they raised two other defences.
First, they argued that they were entitled to use such force as is reasonable in the prevention of crime. They also relied on the defence of necessity, claiming they were acting to prevent death or serious injury to others. To rely on either of these defences, a defendant must act reasonably and proportionately. And, unlike the “lawful excuse” defence, these are objective tests.
Bathurst Norman’s explanation to the jury of these defences strikes me as entirely unexceptionable. But he then explained that the “crimes” relied on by the defendants for the second of their defences were war crimes. In the judge’s words, “if the Israeli Air Force was committing crimes in the way that the agreed evidence outlines in the unlawful killing of Palestinians in Gaza and in the unlawful causing of damage to property in Gaza, then under the War Crimes Act and other legislation any member of the Israeli Air Force who set foot in this country and who acted in that way would be liable to arrest and prosecution”.
That may well be correct as a matter of law. But what was the Crown Prosecution Service doing in agreeing that the Israelis were guilty of war crimes?
The remarks just quoted, however, were as nothing compared with what Bathurst Norman went on to tell the jury:
Now you have to look at the evidence coldly and dispassionately. It may be as you went through what I can only describe as horrific scenes, scenes of devastation to civilian population, scenes which one would rather have hoped to have disappeared with the Nazi regimes of the last war, you may have felt anger and been absolutely appalled by them, but you must put that emotion aside.
Equally, you must put aside any feelings of being thoroughly ashamed of our government, of the American government and the United Nations and the EU in doing nothing about what was happening. You just concentrate on the evidence and deal with the case on the evidence as it stands.
Bathhurst Norman would not be the first judge to make his feelings very clear while, in the same breath, telling the jury to ignore them. And, even in the passage I have just quoted, the judge would no doubt say that he is doing no more than summarising the evidence.
When he deals with what was said by individual witnesses, he becomes even freer in his attacks on Israel, describing Gaza as a “giant prison camp” and asserting that US support enables the Israelis to “cock a snook” at anything decided by the UN or the International Court of Justice. Again, though, the judge would presumably say that he is doing no more than reminding the jury of the evidence they have heard.
So, for example, one of the judge’s most widely misquoted comments is attributed, just about, to a named defendant.
Miss Saibene… took us through the horrors, and there is really no other word for it than horrors, that emerged in the press and on the news and the footage as to what the Israelis were doing in Gaza during Operation Cast Lead. Women and children were killed, many more injured, United Nations buildings bombed, civilians having taken shelter there. You may think that perhaps “Hell on Earth” would be an understatement of what the Gazans endured at that time.
I say “misquoted” because the report that appeared in the Guardian and subsequently elsewhere – written by a freelance who specialises in the environment and food – inserts a false negative into the “hell on earth” quote. Even so, everybody seems to have understood what the judge meant. The full transcript of his summing-up, which runs to 87 pages of double-spaced A4, has been published on the Jewish Chronicle website.
As is widely known, all seven defendants were acquitted by the jury. An eighth was cleared part-way through the trial on the directions of the judge, who ruled that the prosecution had not proved its case against her.
What happens now? A number of Americans have asked me whether the defendants could be tried again if an appeal court were to decide that the judge’s summing-up had been biased or deficient.
The answer is no. Generally speaking, an acquittal in English law is final. I know of only three exceptions. One is an appeal “by way of case stated” from a conviction by the magistrates’ court. This enables a prosecutor to challenge an error of law but does not apply to cases tried in the Crown Court.
The second exception, under sections 54-57 of the Criminal Procedure and Investigations Act 1996, allows the reopening of “tainted acquittals” following interference with jurors or witnesses. And the third exception, under sections 75-79 of the Criminal Justice Act 2003, allows a retrial if “new and compelling” evidence comes to light and a new trial would be in the interests of justice. These exceptions clearly do not apply to the present case.
What, though, if a judge gets the law wrong? Under section 36 of the Criminal Justice Act 1972, the Attorney General may seek the opinion of the Court of Appeal on a point of law that has arisen in a case that has led to an acquittal. Whatever the outcome, however, the acquittal remains unaffected.
Dominic Grieve’s office told me this week that nobody had asked the Attorney General to consider referring this case to the court under these powers. Very well: I ask Grieve to consider doing so now.
My reason is that other campaigners may well treat the case as if it is some sort of legal precedent. It is not, of course; a summing-up to a jury is not binding on anybody. But it is important that the Court of Appeal and, ideally, the Supreme Court should make it clear that the end does not justify the means in cases such as this.
To some extent, the courts have said this already. For example, in Hutchinson v. Newbury Magistrates Court, decided in 2000, the Court of Appeal dismissed an appeal by a protestor who had damaged a fence at the Atomic Weapons Establishment at Aldermaston in protest against the government’s nuclear weapons programme.
That decision was approved in 2006 by Lord Hoffmann, giving judgment in the House of Lords in R v Jones. The law lords were dealing with several cases involving criminal damage and aggravated trespass by defendants seeking to disrupt what they regarded as a crime of aggression – Britain’s involvement in the Iraq war.
These cases were not entirely on all fours with the one tried by Bathurst Norman. But he should surely have alerted the jury to the thinking behind Lord Hoffmann’s remarks on self-help (paragraphs 70-88) and civil disobedience (paragraphs 89-94). Some extracts from Lord Hoffmann’s judgment:
The state entrusts the power to use force only to the armed forces, the police and other similarly trained and disciplined law enforcement officers. Ordinary citizens who apprehend breaches of the law, whether affecting themselves, third parties or the community as a whole, are normally expected to call in the police and not to take the law into their own hands…
The right of the citizen to use force on his own initiative is even more circumscribed when he is not defending his own person or property but simply wishes to see the law enforced in the interests of the community at large. The law will not tolerate vigilantes. If the citizen cannot get the courts to order the law enforcement authorities to act… then he must use democratic methods to persuade the government or legislature to intervene…
Of course citizens are entitled, indeed required, to refuse to participate in war crimes. But if they are allowed to use force against military installations simply to give effect to their own honestly held view of the legality of what the armed forces of the Crown are doing, the Statute of Treason would become a dead letter…
Civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind.
But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account…
In a case in which the defence requires that the acts of the defendant should in all the circumstances have been reasonable, his acts must be considered in the context of a functioning state in which legal disputes can be peacefully submitted to the courts and disputes over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury. Evidence to support the opinions of the protesters as to the legality of the acts in question is irrelevant and inadmissible, disclosure going to this issue should not be ordered and the services of international lawyers are not required.
These remarks were not binding on Bathurst Norman. But it is arguable that they would be followed by the Court of Appeal if the Attorney General were to make a reference in the present case. We do not know whether the jury relied on objective or subjective defences; they do not give reasons. But Grieve should ask the court whether any of the defences put forward in this case should, on the evidence, have been left to the jury. In the meantime, Bathurst Norman’s summing up should be regarded as bad law.
Finally, what are the prospects that Bathurst Norman will be reprimanded for antisemitism? The Lord Chief Justice has disciplinary powers over other judges under section 108 of the Constitutional Reform Act, although these powers may not be exercised without the agreement of the Lord Chancellor. The two office-holders are supported by staff in the Office for Judicial Complaints (OJC).
Crucially, though, the OJC deals with misconduct by judges. It does not act as a court of appeal. Paragraph 14 of the Judicial Discipline (Prescribed Procedures) Regulations 2006 says:
The Office for Judicial Complaints must dismiss a complaint… if…
(b) it is about a judicial decision or judicial case management, and raises no question of misconduct…
What, then, is misconduct? The OJC says it includes the use of insulting, racist or sexist language. And how bad does it have to be?
It was reported in February that Cherie Booth QC, sitting as a part-time judge, told Shamso Miah, 25, that she would suspend the prison sentence she had given him for fracturing a man’s jaw. She reportedly told him: “You are a religious man and you know this is not acceptable behaviour.” But the National Secular Society complained that her sentencing remarks suggested that she would have treated a non-religious person more harshly.
The OJC announced in June that observations by the former prime minister’s wife did not constitute judicial misconduct. But officials tried to block publication of the fact that she was to be given be given “informal advice from a senior judge” about her comments.
No doubt those from the Jewish community and elsewhere who have complained to the OJC about Bathurst Norman’s remarks would regard them as far more offensive. Indeed they are – but not in relation to any of those before the court and certainly not to the one defendant who turned out to be Jewish. The remarks were deeply offensive to supporters of Israel and, indeed, to supporters of truth generally. They have contributed to the slow demonisation and delegitimisation of Israel within the United Kingdom. As such, they may fuel the alarming rise in British antisemitism.
Many Jews will have felt insulted by what the judge said about their co-religionists. But that does not make his remarks antisemitic in the sense that would interest the OJC. Even if I am wrong on this, I would have thought the judge could reasonably claim that the complaints related to a “judicial decision” and were therefore excluded from the OJC’s ambit.
Imagine, if you will, a remark that is deeply insulting, racist and sexist. Imagine that a judge addresses that remark to a witness. That would clearly amount to misconduct. Now imagine that the judge asks a witness whether he had made the very same remark to the defendant. Same words; nothing improper.
But Lord Judge, the Lord Chief Justice, is very sensitive to the public mood. He knows how damaging it is to the judiciary as a whole when its junior members – always referred to in the press as “top judges” – appear to take sides in matters of political controversy. It’s fine for judges remind a jury what was said in court, so long as they make it clear that these were the views of the witness, not the judge.
I would expect the Lord Chief Justice to defend the right of judges to sum up the evidence fearlessly and fairly. But I would also expect him to remind his fellow judges of the importance of appearing dispassionate and judicious when dealing with the most difficult issues of the day. And if Bathurst Norman is to be given “informal advice from a senior judge” on any further cases he may try in the future, I hope we shall be told about it.